Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

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Dean’s Constitutional Cluelessness

Bradlee Dean continue to demonstrate that he is spectacularly clueless about nearly every subject he speaks or writes about. In his latest column he takes on my favorite subject, constitutional law, and falls flat one his face, making one ridiculous statement after another.

Recently, Judge Andrew Napolitano gave a dim prognostication of what could happen to the rights of the American people if Judge Ruth Bader Ginsburg would fall to sickness or old age in the next four years. He was afraid that Obama might replace her with a progressive (a communist) who would, in turn, do much damage to the Second Amendment and other rights that God has given to the American people.

The equation of progressive and communist is dumb enough. The fact that he can’t seem to count is even worse. Ginsburg is herself a liberal justice; if she is replaced by another liberal justice, almost nothing will change.

Judge Andrew Napolitano must be under the delusion, as most Americans are, that the Supreme Court is the final say in all matters even if they violate our Constitution and the laws of our republic, when, in fact, it isn’t the final say.

Judges were never intended to write, change or create law. They are merely referees charged with the protection of the citizenry by enforcing laws enacted by Congress under the authority of the Constitution.

The judges themselves are to be ruled by law, just like the people they serve. Judges do not have the right to break the law. They are not to legislate from the bench in the manner that the American people have been trained and accustomed to over the last 50 years.

This is nothing but a string of meaningless platitudes. There is no coherent definition of “legislating from the bench,” of course, and he’s also flat wrong when he says the Supreme Court is only supposed to enforce laws passed by Congress. This was made clear in Federalist Paper 78 by Alexander Hamilton, who said:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Is there anything more absurd than right wingers pretending to be in favor of a constitution they know almost nothing about?

Keep in mind, this is the same court that sits under Moses and the Ten Commandments, whom in each individual case swore to uphold the Constitution, “so help me God,” and that starts its proceedings with the following statement: “God save the United States and this Honorable Court!”

And that same court sits under Muhammad too. And Hammurabi. And Napoleon, Justinian, Charlemagne and Hugo Grotius, among others. But those are inconvenient facts so they are simply ignored.

William Blackstone, a professor of common law whom our founders often referenced when framing the American Constitution, said, “No enactment of man can be considered law unless it conforms to the law of God.”

Well yes, but Blackstone was talking about British law, which we replaced with the Constitution. And unlike British law, which is based upon an official church, the Constitution explicitly forbids such establishments. Again, inconvenient facts that must be ignored by wingnuts.

Contrary to America’s Christian foundation, in 1962 the Supreme Court committed an oligarchy (few ruling over many) and removed prayer from public schools in the case Engel v. Vitale. This case was also the first court case in history to use zero precedents.

Wrong. In fact, that ruling goes all the way back to British laws passed in the 1500s and discusses the entire history of religious establishments and forced prayer. It cites the Founding Fathers directly, especially James Madison. But knowing that would require that Dean actually read the ruling, which I doubt he is capably of understanding even if he bothered to take the time.

Just another wingnut blathering like an idiot when it comes to the constitution and the courts.

Comments

I love that bit in the Constitution when the space reptiles guaranteed our right to be euthanized before they eat us. It’s in the secret part of the Constitution that you can only see if you look at it through special Tea Party decoder glasses which you can only get after pledging eternal allegiance to Grover Norquist.

It’s in the secret part of the Constitution that you can only see if you look at it through special Tea Party decoder glasses which you can only get after pledging eternal allegiance to Grover Norquist.

No no no, didn’t you see the movie? Nicholas Cage found the secret words on the BACK of the Constitution, with lemon juice and a hair dryer!

‘…no ex-post-facto laws…’, what like the grandfather clause in the section on who can be President? Couldn’t even get it right from the beginning then. ;)

“William Blackstone, a professor of common law whom our founders often referenced when framing the American Constitution…”. Blackstone, of course, is permitted to have his own opinion, despite his opinion being irrelevant to the issue at hand.

“… in 1962 the Supreme Court committed an oligarchy…”. What, exactly, did the Supreme Court commit this oligarchy to do? Or perhaps the judges had this ‘oligarchy’ of unnamed persons involuntarily confined in a mental health facility.

This case was also the first court case in history to use zero precedents.

Interestingly, Clarence Thomas– by far, the SCOTUS justice most likely to enforce Dean’s wingnuttery from the bench– is quite fond of the concept of using “zero precedents.” No, “fond of” is the wrong way to put it….he’s obsessed with it.

Or perhaps some secret law makes being an oligarchy illegal (that’ll be news to boardrooms across the county, committee-rooms in Washington, the Cabinet office in the Whitehouse, the Joint Chiefs of the Army, Navy, air-force and Marines and many other such groups).
Dingo

This statement is only true so far as judges don’t write or edit statutes directly. It’s is, however, highly misleading. Judges make and modify law all the freaking time.

Has the right never heard of the ‘common law’? Judges rule on cases where the issues haven’t been codified into a statute. These rulings then accrete into precedent(when suitably blessed by time and appeals)and later judges rule in accordance with the precedent. This process is one of law creation and woe unto thee who doesn’t get it.

My attorney friends are also pretty shy about relying on new statutes until there have been a few cases to tell us what those statutes mean. Alternatively, they look at new laws as an opportunity to set up cases in certain ways in order to blunt the impact of say a new environmental regulation or to skew how that law is applied to their primary clients.

Puh-lease. In reality they used the blood of patriots and a Colt 1911, God’s chosen handgun.

Ah, yes. Who could forget the stirring tale of how Jesus fought a pitched battle with the money changer mafia in the temple with his dual Colt 1911’s? Say what you want about the other crap in the bible, but Jesus sure had the right approach to organized crime!

67 And lo, didst the last money changer cower on the floor as Jesus placed Lefty against his forehead.68 “Thou art to be a prince of peace! Have mercy oh Lord!” cried the moneychanger, as a spreading yellow puddle didst pool around his ass.69 But Jesus gaveth not mercy. “I come not to bring peace, but to bring a sword,” He bespokethed, and pulled the trigger.70“Someone clean this fucking mess up,” commandedeth Jesus, as He rent the veil of the temple in twain and beused it to wipeth the brains that didst speckle His blessed face and blessed hands.71 Pausing a moment to regardest the corpses, He spitteth upon them in contempt with his divine spittle. “Jesus Christ, what a bunch of assholes.”

They are merely referees charged with the protection of the citizenry by enforcing laws enacted by Congress under the authority of the Constitution.

Just to remind Dean…in sports (maybe something else he’s not too familiar with), the referees do, indeed, have “the final say” about how the rules (laws) enacted under the authority of, say the NFL’s Rules Committee (Congress) are enforced. In the context of the game itself, there is no higher authority.

Judge Andrew Napolitano must be under the delusion, as most Americans are, that the Supreme Court is the final say in all matters even if they violate our Constitution and the laws of our republic, when, in fact, it isn’t the final say.

What a loon! The reason these cases are before the Supreme Court in the first place is because people have disagreements what the Constitution means in a particular case. If it was so “obvious” what the Constitution means, the case wouldn’t have come before the Supreme Court in the first place.

The arguments that Deen makes is all part of the lunatic Manichean absolute light vs absolute dark world that the religious right lives in. Constitutional law isn’t really about an impartial panel trying to adjudicate between parties with sincerely held beliefs; no, rather you have the evil Left knowingly and willingingly perverting the plain reading of the Constitution, and a nefarious judiciary, enamored of their own power, enabling all of this.

Even if true, he’s still wrong. The justices get to interpret the law. Unfortunately, it has been interpreted (or declined for examination) by the bench in (e.g.) Deen’s favor for far too long in some respects.

Religious and social conservatives are hardly legal conservatives. All one needs to look at is law and enforcement thereof with respect to things like religion, “intellectual property”, and corporations. Social liberals are usually equally complicit.

Yeah, they are lawgivers, not necessarily good lawgivers. (Of course, to be accurate to tradition, at least Moses and Muhammad should be replaced by reliefs of Yahweh and Allah, who are notoriously camera-shy, although one of them likes to have his son and minions appear on burnt toast, stains, and flaking paint.)

“The judges themselves are to be ruled by law, just like the people they serve. Judges do not have the right to break the law. They are not to legislate from the bench in the manner that the American people have been trained and accustomed to over the last 50 years.”

God is this guy not just cluele3ss about the Constitution but also about basic American history. The fact is the Supreme court has been legislating from the bench for two centuries. This guy is pontificating about the powers of the Supreme Court and he doesn’t mention: Marbury v. Madison (1803), which established a comprehensive view of Judicial review.

I could of course mention the Dred Scott case (1857), which disallowed a major piece Congressional of legislation, and helped cause the Civil War.

What about those cases in the late 19th early twentieth century giving corporations many of the rights of persons. What about the case that disallowed the Federal Law that created an income tax, Pollock v. Farmers’ Loan & Trust Co. (1895).

I could also mention how the Supreme Court struck down certain aspects of the New Deal during the 1930s.

Of course the phrase “over the last 50 years”, refers to Supreme Court decisions that were “Liberal”, starting with the Brown decision of 1954. Thus it is not so much judicial activism that bothers him but “Liberal” judicial activism.

So Mr. Dean cheerfully ignores the history of judicial activism. Of Course he will say nothing concerning Bush 2000 because that got the “right” result.

Let’s add “progressive” to the list of words that the right-wing propaganda machine has scooped all the meaning out of, and replaced it with pure visceral hate sauce. You don’t need to know what it means to be ‘progressive’ anymore, you just need to know that’s your cue to boo and hiss.